# Petition for Writ of Certiorari — Johnson v. Shalala

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0663%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 806

## Text

“ ‘AUG 16 1993

— |

i}
} a!

[7

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

SHARON JOHNSON,
Petitioner,

DONNA SHALALA, SECRETARY OF
HEALTH AND HUMAN SERVICES,
Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Joseph M. Sellers S. William Livingston, Jr.*
Washington Lawyers’ Ronald J. Krotoszynski, Jr.
Committee for Civil Rights Covington & Burling

and Urban Affairs 1201 Pennsylvania Ave., N.W.
1400 I Street, N.W. P.O. Box 7566
Suite 450 Washington, D.C. 20044
Washington, D.C. 20005 (202) 662-6000
(202) 682-5900 Attorneys for Petitioner

Sharon Johnson

August 16, 1993 *Counsel of Record

QUESTIONS PRESENTED

1. In order to establish a claim of constructive discharge
under the federal statutes prohibiting discrimination in
employment, is it necessary for a plaintiff to prove not only
that a reasonable person in the plaintiff's position would have
regarded the working conditions as intolerable, but also that
the employer acted with a “deliberate intent" to force the
plaintiff to quit?

2. Is direct evidence of a deliberate intent to force an
employee to resign required in order to prove a claim of
constructive discharge under the Rehabilitation Act of 1973,
28 U.S.C. § 701 et seqg., whenever a federal employer makes
some partial effort to accommodate the employee’s disability?

LIST OF PARTIES

The parties in these consolidated appeals were Dr. Sharon
Johnson, appellant in Nos. 92-1815 and 92-1846, and Donna
Shalala, Secretary of the Department of Health and Human
Services, appellant in Nos. 92-1109 and 92-1816.”

V/

The Washington, D.C. Council of Lawyers participated as an amicus
curiae, in Nos. 92-1815 and 92-1846, regarding certain attorneys’ fees
issues that were rendered moot by the Fourth Circuit’s disposition of the
case.

ii

TABLE OF CONTENTS

Page

oo 8, errr ere ee ere ee l
STATEMENT OF JURISDICTION .......... 2
FEDERAL STATUTES INVOLVED ......... 2
STATEMENT OF THE CASE ....-c20csc80% 2
REASONS TO GRANT THE PETITION ....... 4
1. This Case Presents An Important Question of

Federal Law On Which The Circuit Courts Have

Reached Inconsistent Results ............ 4
2. The Fourth Circuit’s Decision Inappropriately

Requires "Direct Evidence" Of "Deliberate

DE se ee es oe ee ee 8
CAPE, 6 be 6 awe eee eee eee 11
ESE FA 6 6 wo ok ee eee la
ws a rr are mr grr ye! 12a
PP Ge kn + 6 See 15a
PPS Pk ee ee eee 43a

TABLE OF AUTHORITIES

CASES

Page
Alexander v. Choate, 469 U.S. 287 (1985) ..... 7
Aviles-Martinez v. Monroig, 963 F.2d 2
I ae kG kg ck we ee ee 8 4, 7
Bourque v. Powell Electric Manufacturing Co.,
er meme Gee SE. EU) ww wt ee 5, 8, 11
Boze v. Branstetter, 912 F.2d 801
ek aks bk se ek es 11
Bristow v. Daily Press, Inc., 770 F.2d 1251
I eee 10
Brooms v. Regal Tube Co., 881 F.2d 412
EE kk 5 gp ew 5 8 ek ht a
Buckley v. Hospital Corp. of America, Inc..,
ae eee cee Ge. 1965)... . 2... a
Carter v. Bennett, 840 F.2d 63
ee he tt tt te 7
Clark v. Marsh, 665 F.2d 1168 (D.C. Cir. 1981) . 11
Daniels v. Essex Group, Inc., 937 F.2d 1264
EE 5

Derr v. Gulf Oil Corp. , 796 F.2d 340
EE ee 4,7, 8

iV

TABLE OF AUTHORITIES

Continued
Page

Furnco Construction Co. v. Waters,
ee i ee RO a iy 6:6 ea ele ee 5k ee a 8, 10
Goss v. Exxon Office Systems Co.,
yew fee fe ae | ee 4,7
Gray v. York Newspapers, Inc., 957 F.2d 1070
6 |. ere rr ere ae 4
Greenberg v. Hilton International Co.,
ae ee ee Ce es BD 6 kk ee ee a
Henry v. Lennox Industrial, Inc..,
768 F.2d 746 (6th Cir. 1985) ............. 6
Holsey v. Armour & Co., 743 F.2d 199
(4th Cir. 1984), cert. denied,
een tie kot a's oe ee ee ee 5, 10
Hopkins v. Price Waterhouse, 825 F.2d 458
(D.C. Cir. 1987), rev’d, 490 U.S. 228 (1989) ... 4,7
Johnson v. Bunny Bread Co., 646 F.2d 1250
Nee ae ee are ere 5,9
Junior v. Texaco, Inc., 688 F.2d 377
SU I lik hy aw a RT 6c 5

Kent by Gillespie v. Derwinski,
790 F. Supp. 1032 (E.D. Wash. 1991)........ 8

Vv

TABLE OF AUTHORITIES

Continued
Page

Nolan v. Cleland, 686 F.2d 806
Pe I er ee 8
Pittman v. Hattiesburg Municipal Separate
School Dist., 644 F.2d 1071 (Sth Cir. 1981) ....4,5,7
Pushkin v. Regents of the University
of Colorado, 658 F.2d 1372 (10th Cir. 1981)... 10
Prewitt v. United States Postal Service,
662 F.2d 292 (Sth Cir. 1981) ............. 10
Satterwhite v. Smith, 744 F.2d 1380
Ge eh es bbe ok kb ae ss 11
Smith v. Cleburne County Hospital, 870 F.2d 1375
(8th Cir.), cert. denied, 493 U.S. 847 (1989) .... 9
Southeastern Community College v. Davis, 442
Nk ge Se 5 yak @ go kL wk ea 7
Watson v. Nationwide Insurance Co..,
823 F.2d 360 (9th Cir. 1987) ............. 4
Yates v. Avco Corp., 819 F.2d 630
ee ee GF ee og oe aw 5 eS 6

STATUTES
oe le BORD in ee ck ee eee ke. 2

OP Men Pe, ns kk os hv we een 2

vi

TABLE OF AUTHORITIES

Continued
Page
te Rete ye ee rer ere rer re 6
a FR le Ses 2S er eer 6

LEGISLATIVE HISTORY

Sum Ge, TG. Deo oe CEFIZ) ww te te 7

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1993

No.

—

: SHARON JOHNSON,
fo Petitioner,

V.

DONNA SHALALA, SECRETARY
: OF HEALTH AND HUMAN SERVICES,
Respondent.

“hg

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth
Circuit, reported at 991 F.2d 126, is reprinted in Appendix
A at pp. la-1la. The panel’s order denying rehearing is
reprinted in Appendix B at pp. 12a-14a. The district court’s
unpublished opinion and order entering judgment in favor of
petitioner are reprinted respectively in Appendix C at pp.
[5a-42a and Appendix D at pp. 43a-44a.

2
STATEMENT OF JURISDICTION

The opinion of the Court of Appeals was released on
April 20, 1993. On May 4, 1993, petitioner filed a petition
for rehearing and suggestion for rehearing en banc, which
was denied on May 17, 1993. The jurisdiction of this Court
is invoked under 28 U.S.C. § 1254(1).

FEDERAL STATUTES INVOLVED

This case involves the proper interpretation of 29 U.S.C.
§§ 791, 794, which are reproduced in Appendix E, at pp.
45a-50a.

STATEMENT OF THE CASE

Beginning in August 1985, petitioner, Dr. Sharon
Johnson, sought from her employer, the National Institutes of
Health (the "NIH"), modifications in her daily work schedule
to accommodate her disabilities. After repeatedly failing to
obtain any significant accommodation of her disabilities
during the course of an entire year, petitioner resigned her
employment under protest on August 20, 1986. Pet. App.
3a-7a, 18a-28a. Petitioner thereafter brought this suit,
claiming that she had been "constructively discharged” from
her position at NIH.

Following a bench trial, the district court found that NIH
violated 29 U.S.C. § 701 et seg. by failing reasonably to
accommodate petitioner’s disabilities. Pet. App. 36a-38a.
The district court also found that Dr. Johnson was subjected
to intolerable working conditions that eventually forced her to
terminate her employment. Pet. App. 37a-38a. Consistent
with the Fourth Circuit’s precedent, the district court then
analyzed whether NIH acted with "deliberate intent" to cause
petitioner to resign her employment, and found that such
intent existed, based on its subsidiary factual findings that:
(1) NIH had suggested that Dr. Johnson consider disability

3

retirement in its response to her initial request for accommo-
dations, (2) her NIH supervisor prepared a false performance
evaluation to support a determination of eligibility for
disability retirement, and (3) NIH took no significant steps to
accommodate Dr. Johnson’s disabilities. Pet. App. 37a-38a.

The NIH noted a timely appeal to the U.S. Court of
Appeals for the Fourth Circuit, seeking review only of the
finding that the NIH had deliberately intended to cause Dr.
Johnson’s resignation. Pet App. 8a. Accordingly, the NIH
declined to seek review of the findings that Dr. Johnson’s
disabilities were not reasonably accommodated or that the re-
peated failure to accommodate her disabilities created intolera-
ble working conditions. See id.

On appeal, the Fourth Circuit accepted the district court’s
subsidiary findings, but held as a matter of law that NIH’s
partial (but inadequate) efforts to accommodate petitioner’ s
disabilities precluded a finding of "deliberate intent" to force
Dr. Johnson to resign. "The evidence here is insufficient to
show a deliberate intent to discharge an employee when there
has been an attempt to accommodate that same employee,
even though the accommodation falls short of [what is
required by] the Rehabilitation Act." Pet. App. 10a.

The Fourth Circuit expressed the fear that the district
court’s approach "threatens to convert every failure to
accommodate under the Rehabilitation Act into a potential
claim for constructive discharge." Pet. App. 9a. Thus, the
Court of Appeals held that to prevail on a constructive
discharge theory, an employee with a disability whose
employer has offered partial or ineffective accommodations
must present direct evidence that the employer deliberately
intended to force the employee to resign. Pet. App. 1 la.

4
REASONS TO GRANT THE PETITION

1. This Case Presents An Important Question of
Federal Law On Which The Circuit Courts Have
Reached Inconsistent Results

There is a sharp split among the circuits as to the proper
standard for establishing a constructive discharge in employ-
ment discrimination cases.’ Three distinct and inconsistent

approaches have been followed by various circuits.

Most courts of appeals do not require a plaintiff to show
that the employer harbored a "deliberate intent" to force the
employee to resign in order to establish a constructive
discharge.” In these circuits, "[t]he focus is upon the rea-

A “constructive discharge" occurs when an employee as a practical

matter is forced to resign. The application of the constructive discharge
doctrine generally does not vary depending on the employment statute that
is at issue; the same rules apply for establishing a constructive discharge
regardless of the particular statute at issue. Gray v. York Newspapers,
Inc., 957 F.2d 1070, 1079 n.5 (3rd Cir. 1992) ("the doctrine of construc-
tive discharge is the same in all employee discrimination claims"); see also
Goss v. Exxon Office Sys. Co., 747 F.2d 885, 887 (3rd Cir. 1984)
(explaining that federal courts borrowed the constructive discharge doctrine
from labor law and listing cases that apply the constructive discharge
doctrine across various civil rights statutes).

ry Hopkins v. Price Waterhouse, 825 F.2d 458, 472 (D.C. Cir. 1987)
("a number of cases . . . have rejected the notion that the employer must
have the specific intent of forcing the employee to quit"), rev’d on other
grounds, 490 U.S. 228 (1989); Watson v. Nationwide Ins. Co., 823 F.2d
360, 361 (9th Cir. 1987) ("plaintiff need not show that the employer
subjectively intended to force the employee to resign"); Derr v. Gulf Oil
Corp., 796 F.2d 340, 343-44 (10th Cir. 1986) ("an employer’s subjective
intent is irrelevant"); Goss v. Exxon Office Sys., Inc., 747 F.2d at 887-88
("[w]e hold that no finding of a specific intent on the part of the employer
to bring about a discharge is required for the application of the construc-
tive discharge doctrine"); Pittman v. Hattiesburg Mun. Separate School
Dist. , 644 F.2d 1071, 1077 (Sth Cir. 1981) ("[t]he employee . . . does not
have to prove it was the employer’s purpose to force the employee to
resign"); see Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992)
(holding that a plaintiff must demonstrate that her working conditions in

(continued...)

5

sonable reaction of the employee [to her working conditions];
it is not necessary to show that the employer subjectively
intended to force a resignation." Junior v. Texaco, Inc. , 688
F.2d 377, 379 (Sth Cir. 1982). Thus, the finder of fact is
under no obligation "to divine the state of mind of the
employer." Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61,
65 (Sth Cir. 1980). Under this standard, the employee need
show only that he or she was faced with working conditions
under which "a reasonable person in the employee’s position
and circumstances would have felt compelled to resign."
Pittman, 644 F.2d at 1077.

Taking a markedly different approach, at least two other
courts of appeals, including the court below, require a
plaintiff to show that the employer possessed a "deliberate
intent" to force the employee to resign in order to establish
a constructive discharge. In these circuits, if the employee
fails to show that the employer possessed a "deliberate intent"
to force the employee to resign, no constructive discharge
claim can be sustained.’

2(...continued)

continued employment "would have been so difficult or unpleasant that a
reasonable person in the employee’s shoes would have felt compelled to
resign," without requiring any showing regarding the employer’s
subjective intent); Greenberg v. Hilton Int’l Co. , 870 F.2d 926, 936 (2d
Cir. 1989) (same); Buckley v. Hospital Corp. of America, Inc., 758 F.2d
1525, 1530-31 (11th Cir. 1985) (same); see also Brooms v. Regal Tube
Co., 881 F.2d 412, 423-24 (7th Cir. 1989) ("[w]e agree with the district
court’s decision to adopt a test which focuses upon the impact of [the
employer’s] actions upon a reasonable person"); cof. Daniels v. Essex
Group, Inc., 937 F.2d 1264, 1272 (7th Cir. 1991) (holding that liability
for a constructive discharge exists when an employer "knew or had reason
to know about the existence of intolerable working conditions” and "fails
to take appropriate remedial action").

¥ See Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir. 1984),
cert. denied, 470 U.S. 1028 ( 1985); Johnson v. Bunny Bread Co., 646
F.2d 1250, 1256 (8th Cir. 1981).

6

The Sixth Circuit has opted for still another approach,
under which a plaintiff must show both that the working
conditions were intolerable and that there was some "aggra-
vating factor." See Yates v. Avco Corp., 819 F.2d 630, 637
(6th Cir. 1987); Henry v. Lennox Indus., Inc. , 768 F.2d 746,
752 (6th Cir. 1985). In the Sixth Circuit, "deliberate intent"
could serve as the "aggravating factor," but would probably
not be a prerequisite to proving a constructive discharge.
See, e.g., Yates, 819 F.2d at 637.

Thus, at present there are three different and competing
versions of the law of constructive discharge. In conse-
quence, a plaintiff's ability to recover for a constructive
discharge under the Rehabilitation Act and other federal
employment discrimination statutes such as Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000¢e er
seq., and the Americans With Disabilities Act, 42 U.S.C.
§ 12101 et seg., will turn in many cases on which circuit’s
law applies. The impact of this conflict between the circuits
is particularly apparent here because, according to the
standards set forth in the majority of circuits, Dr. Johnson set
forth a viable claim of constructive discharge. The only
finding at issue on appeal was the determination that NIH had
acted with deliberate intent; the finding that intolerable
working conditions existed was neither challenged nor
disturbed on appeal. The findings left unchallenged here
would have sufficed in most circuits, therefore, to sustain a
claim of constructive discharge.

Moreover, this difference in legal standards among the
circuits by which constructive discharge claims are assessed
is critical to the effectiveness of the protections afforded by
the disability laws. One of the primary purposes of the
Rehabilitation Act was to ensure that persons with disabilities
were not unnecessarily precluded or forced from employment

a —

7

because of their disabilities.’ Congress passed the Rehabili-
tation Act to remedy the "glaring neglect" of the disabled.
118 Cong. Rec. 526 (1972) (Statement of Sen. Percy). The
framers of the Act recognized that the nation no longer could
“tolerate the invisibility of the handicapped in America." 118
Cong. Rec. 525-526 (1972) (Statement of Sen. Humphrey).
As this Court has noted, "much of the conduct that Congress
sought to alter in passing the Rehabilitation Act would be
difficult if not impossible to reach were the Act construed to
prescribe only conduct fueled by a discriminatory intent."
Alexander v. Choate, 469 U.S. 287, 296-97 (1985). To
achieve the remedial purposes that led Congress to pass the
Rehabilitation Act, "harms resulting from action that discrimi-
nated by effect as well as by design" must be rooted out. Jd.
at 297.

An employer that is insensitive to the needs of an
employee with a disability will in many cases cause the same
injuries to a disabled employee as does an employer who
intentionally seeks to force disabled employees to resign. In
both cases, the disabled employee may be forced to resign in
order to escape intolerable working conditions. Accordingly,
the constructive discharge standard used by the Fourth and
Eighth Circuits is inconsistent with the policy of eliminating
the barriers that the disabled must overcome in order to enjoy
full participation in the federal workplace. See Pet. App.
10a-lla; cf. Aviles-Martinez, 963 F.2d at 6; Brooms, 881
F.2d at 423; Greenberg, 870 F.2d at 936; Hopkins, 825 F.2d
at 472; Watson, 823 F.2d at 361; Derr, 796 F.2d at 343-44:
Buckley, 758 F.2d at 1530-31; Goss, 747 F.2d at 887-88:
Pittman, 644 F.2d at 1077.

“ Indeed, "[tJhe legislative history of the Rehabilitation Act ‘demon-
strates that Congress intended that the federal government be a model
employer of the handicapped.’" Carter v. Bennett, 840 F.2d 63, 65 (D.C.
Cir. 1988) (quoting Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir.
1985)); see also Southeastern Community College v. Davis, 442 U.S. 397,
410 (1979).

—

8

Moreover, the Fourth Circuit has imposed an evidentiary
burden that is unnecessarily great. As most circuit courts
have held, an employer who creates intolerable working
conditions which it fails to correct demonstrates that it intends
to force the resignation of employees afflicted by the intolera-
ble conditions. See Derr, 796 F.2d at 344; Bourque, 617
F.2d at 65. No more should be necessary. The logical
consequences of an employer’s action, or inaction, should be
sufficient to support a constructive discharge claim, just as
they will suffice to establish intent for other claims under the
civil rights acts. See Furnco Constr. Co. v. Waters, 438
U.S. 567, 577 (1978); see also Kent by Gillespie v.
Derwinski, 790 F. Supp. 1032, 1040-41 (E.D. Wash. 1991).

If allowed to stand, the decision below will create a
major impediment to the full implementation of the Rehabili-
tation Act, and may also have a significant and adverse effect
on the implementation of other employment discrimination
laws. "[A] stringent requirement that an employer’s intent be
shown is ‘inconsistent with the realities of modern employ-
ment.’" Nolan v. Cleland, 686 F.2d at 806, 814 n.17 (9th
Cir. 1982) (quoting Bourque v. Powell Electrical Mfg. Co..,
617 F.2d 61, 65 (Sth Cir. 1980)). The courts of appeals are
divided on the question whether a showing of deliberate intent
is a mandatory element of a constructive discharge claim. In
these circumstances, guidance from this Court is both
necessary and appropriate.

2. The Fourth Circuit’s Decision Inappropriately
Requires "Direct Evidence" Of "Deliberate
Intent"

In addition to reaffirming its requirement that deliberate
intent be proved to establish a constructive discharge claim,
the Fourth Circuit also held that, as long as an employer
makes some effort to accommodate an employee’s known
disabilities, only direct evidence of deliberate intent to force
the employee’s resignation will suffice to support a construc-

9

tive discharge claim. Pet. App. lla. This holding sets an
evidentiary requirement for claims of constructive discharge
under the disability laws that is so elevated as to render such
claims beyond reach in all but the rarest cases. In reaching
this holding, the Fourth Circuit stands along in immunizing
from liability employers who take partial, ineffective steps
toward resolving a civil rights violation. The Fourth
Circuit’s decision presents an important question of federal
employment law, about which this Court should provide
guidance.

Even assuming arguendo the propriety of requiring a
showing of deliberate intent, the Fourth Circuit’s decision to
reject the district court’s finding of deliberate intent is in
error. There was ample circumstantial evidence from which
a trier of fact could infer a deliberate intent on the part of
NIH officials to get rid of petitioner. In fact, that is precisely
the inference drawn by the district court based on undisputed
evidence of such facts as: (1) NIH’s initial response to
petitioner’s request for accommodation included a "sugges-
tion" that she apply for disability retirement, and (2) her
immediate supervisor prepared a false performance evaluation
with a crude attempt to forge petitioner’s signature, ostensibly
to “help" plaintiff qualify for disability retirement benefits.
Pet. App. 18a-19a, 25a-26a, 37a-38a.

But instead of sustaining the district court’s inference, the
Fourth Circuit held that evidence of a partial failure to
accommodate a disability, even when such action leaves in
place intolerable working conditions, defeats a finding of

* Although the Eighth Circuit concurs in the Fourth Circuit’s
“deliberate intent" requirement, we have found no circuit court decision,
other than the decision below, that largely immunizes from liability
employers who take partial, ineffective steps toward resolving a civil
rights violation. Cf. Smith v. Cleburne County Hosp., 870 F.2d 1375,
1380-81 (8th Cir.), cert. denied, 493 U.S. 847 (1989); Johnson v. Bunny
Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981).

10

deliberate intent, in the absence of "direct evidence" of
impermissible intent.” Pet. App. 10a-11a.

The decision below departs significantly from the
standard previously established by even the Fourth Circuit for
protecting against constructive discharge.” More impor-
tantly, the decision below is inconsistent with this Court’s
ruling in the employment discrimination context that employ-
ers may fairly be assumed to have intended the natural
consequences of their actions or inactions. Furnco Constr.
Co. v. Waters, 438 U.S. 567, 577 (1978) ("more often than
not people do not act in a totally arbitrary manner, without
any underlying reasons, especially in a business setting").

The practical consequence of the decision below is clear.
"It would be a rare case indeed in which a hostile discrimina-
tory purpose or subjective intent to discriminate solely on the
basis of handicap could be shown."* Pushkin v. Regents of

£ Previously, the Fourth Circuit had held that "[i)ntent may be inferred
through circumstantial evidence, including a failure to act in the face of
known intolerable conditions." Bristow v. Daily Press, Inc., 770 F.2d
1251, 1255 (4th Cir. 1985). Thus, although the Fourth Circuit prior to
Johnson had required civil! rights plaintiffs to show that their employer
possessed a “deliberate intent” to force them to resign in order to establish
a constructive discharge, it allowed such plaintiffs to meet this burden by
showing the existence of intolerable working conditions. Id.

Y See Holsey v. Armour & Co., 743 F.2d at 209 (holding that
deliberate intent may be inferred from the existence of intolerable working
conditions).
Moreover, the Fourth Circuit’s concern that affirming the district
court’s judgment would "threaten[] to convert every failure to accommo-
date" into a constructive discharge claim is misplaced. Pet. App. 9a. An
employer’s failure to accommodate an employee’s disability would support
a claim of constructive discharge only if the employee’s working
conditions are intolerable, and remain intolerable as a result of the
employer’s failure to provide effective accommodations. Often this will
not be the case. A failure reasonably to accommodate a disabled
employee’s desire for a promotion, for example, will support a claim
under the Rehabilitation Act, see Prewitt v. United States Postal Serv.,
(continued...)

11

the Univ. of Colorado, 658 F.2d 1372, 1385 (10th Cir.
1981).

In effect, the Fourth Circuit has significantly weakened
the incentive for employers to comply fully and effectively
with the requirements of the Rehabilitation Act and other
statutes prohibiting discrimination in employment. See
generally Boze v. Branstetter, 912 F.2d 801, 804 (Sth Cir.
1990). This result is inconsistent with the mandate of the
Rehabilitation Act, implicates an important question of federal
employment law, and therefore should not be permitted to
stand.

CONCLUSION

This petition should be granted in order to resolve
important and recurring legal issues arising under the Rehabil-
itation Act of 1973 and other statutes prohibiting employment

#(.. continued)

662 F.2d 292, 307-09 (Sth Cir. 1981), even though denials of promotions
standing alone rarely if ever are sufficient to support a claim of construc-
tive discharge. See Bourque, 617 F.2d at 65-66; cf. Satterwhite v. Smith,
744 F.2d 1380, 1383 (9th Cir. 1984) (finding a constructive discharge
where employer refused to promote employee and other aggravating
circumstances were present); Clark v. Marsh, 665 F.2d 1168, 1174 (D.C.
Cir. 1981) (same).

12

discrimination, including an issue as to which there is a split
among the Circuit Courts of Appeals.

. Respectfully Submitted,

Joseph M. Sellers S. William Livingston, Jr.*
Washington Lawyers’ Ronald J. Krotoszynski, Jr.
Committee for Civil Rights Covington & Burling

and Urban Affairs 1201 Pennsylvania Ave., N.W.
1400 I Street, N.W. P.O. Box 7566
Suite 450 Washington, D.C. 20044
Washington, D.C. 20005 (202) 662-6000

(202) 682-5900 Attorneys for Petitioner
Sharon Johnson

*Counsel of Record

August 16, 1993

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0663%3A1. Public record. Not legal advice.